Curtesy

An estate to which a man is entitled by common-law right on the death of his wife, in all the lands that his wife owned at any time during their marriage, provided a child is born of the marriage who could inherit the land.

COMMON LAW provided that upon marriage a husband acquired a right, sometimes called a freehold estate, to the use and profits of his wife's lands. His estate jure uxoris (Latin for "in the right of the wife") continued only during the marriage and terminated upon the death of either spouse or upon their divorce. At early common law in England, an absolute DIVORCE could be obtained only by an Act of Parliament. Consequently, for practical purposes, the husband acquired a right to the use and profit of the land during the joint lives of the parties. This estate was subject to sale or mortgage by the husband and could be reached to satisfy the claims of his creditors. The estate jure uxoris virtually disappeared with the enactment of Married Women's Acts, which gave married women a right to manage their own separate estates.

Pursuant to common law, upon the birth of a child capable of inheriting the land, a husband acquires a life estate, or property interest, the duration of which is limited to the life of the party holding it or to that of some other person, in the lands his wife owns. This estate is designated as curtesy initiate, which replaces the husband's estate jure uxoris under early common law. The husband can sell or mortgage the land, and it can be reached to satisfy the claims of his creditors. Upon the death of the wife, it becomes curtesy consummate.

In some states, due to the Married Women's Acts, the birth of a child does not give the husband a vested interest in his wife's property. Until the death of the wife, the husband has a right of curtesy, which is not a present right, but which might develop into a legally enforceable right if not barred, extinguished, or divested. This interest cannot be subjected to the claims of the husband's creditors.

The right of curtesy rests upon proof of a legally recognized marriage, as distinguished from a GOOD FAITH marriage or a de facto marriage, one in which the parties live together as HUSBAND AND WIFE, but the union has no legal effect due to defects in form, such as an invalid license. A VOIDABLE marriage, one that is valid when entered into and that remains valid until either party obtains a lawful court order dissolving the marital relationship, suffices for purposes of curtesy if the marriage is not rendered null before the right to the estate arises.

Curtesy has gradually lost much of its previous significance in the law. In some jurisdictions, curtesy attaches only to the real estate that the wife owns at death, rather than to the real estate owned by the wife during the marriage. In others, curtesy has been abolished and replaced by a statutory elective share in the wife's estate. A few jurisdictions have enacted statutes that embody the basic principles of common-law curtesy but with some modification.

Common law provides that an absolute divorce bars a claim of curtesy. A legal separation—sometimes called a divorce, or a mensa et thoro "from bed and board"—does not terminate the marital relationship. In the absence of an express statute, such a divorce will not bar curtesy. This is also true in regard to an interlocutory decree of divorce, a temporary, interim order of the court.

Statutes in some states provide that curtesy can be denied upon proof of certain types of misconduct, such as ADULTERY, voluntary sexual intercourse of a married person with a person other than one's spouse. Several states have statutes preserving curtesy if a divorce or legal separation was obtained because of the fault of the wife.

Statutes in many states provide that a murderer is not entitled to property rights in the estate of the victim. Some decisions apply these statutes to cases involving curtesy. In other states, these interests are barred upon the principle that a person must not be permitted to profit from his or her own wrong. In accordance with this theory, a CONSTRUCTIVE TRUST will be declared in favor of the heirs or devisees of the deceased wife who is murdered by her husband.